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Criticizing the President: This one’s on Obama

Posted by Warm Southern Breeze on Monday, May 20, 2013

This OpEd is probably some of the best, and most genuinely warranted criticism of President Obama which I’ve yet read.

As late former president Theodore Roosevelt wrote:
“The President is merely the most important among a large number of public servants. He should be supported or opposed exactly to the degree which is warranted by his good conduct or bad conduct, his efficiency or inefficiency in rendering loyal, able, and disinterested service to the nation as a whole. Therefore it is absolutely necessary that there should be full liberty to tell the truth about his acts, and this means that it is exactly necessary to blame him when he does wrong as to praise him when he does right. Any other attitude in an American citizen is both base and servile. To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.* Nothing but the truth should be spoken about him or any one else. But it is even more important to tell the truth, pleasant or unpleasant, about him than about any one else.”

-Theodore Roosevelt’s OpEd Column entitled “Sedition, A Free Press and Personal Rule” published May 7, 1918 in the Kansas City Star

*Roosevelt’s sharp criticism of President Wilson‘s leadership during World War I led the Post Office to warn that the Star that such views might cost the paper its second-class mailing privileges.

RS: In early January 2009, just a few days before he took office, President-Elect Obama said he intended to “look forward, as opposed to looking backwards” on apparent crimes under the Bush administration. As president, Obama seems to have followed through on that pledge because his Justice Department has failed to review political prosecutions such as the one involving former Governor Don Siegelman in Alabama, where I live.

Political prosecutions, of course, were just of one of many improper acts on the justice front during the Bush years–torture, warrantless wiretapping, firings of U.S. attorneys were among the others. In essence, Obama issued a decree that no one would be held accountable for those acts.

Obama’s “look forward” statement made no sense at the time, and it makes even less sense now, coming after he expressed outrage the other day over disclosures about the IRS targeting conservative groups for political reasons. Obama said in a news conference that he would not “tolerate” such actions, that wrongdoers must be held “accountable,” and the problem must be “fixed.”

But his inaction toward the DOJ shows that he will tolerate the targeting of political opponents, that he will not hold individuals accountable for such actions, and he will not take steps to fix the problem. Obama was uttering empty words at his press conference about the IRS. Many of us expect that from a Republican chief executive; we should demand better from a Democrat.

JB: For readers unfamiliar with the Siegelman case, Roger, can you give us a brief overview of what happened and why anyone outside of Alabama should care? It didn’t happen under Obama’s watch so how can he be blamed?

RS: Don Siegelman was a Democratic governor in a deep-red state, a state where Karl Rove has a strong power base. Siegelman accepted a campaign donation from a businessman named Richard Scrushy, and then appointed Scrushy to a health-care regulatory board–a board on which Scrushy had served under three previous governors.

The standard for a bribery conviction in the campaign-donation context is that the prosecution must prove an “explicit agreement” in a something-for-something deal (known in legalese as a “quid pro quo.”) No evidence at trial pointed to such an unlawful deal, and the federal judge presiding over the case (a George W. Bush appointee named Mark Fuller) gave incorrect jury instructions that did not include the “explicit agreement” requirement. He allowed the jury to infer that such a deal took place, and that is contrary to established law under U.S. Supreme Court precedent in a case styled McCormick v. U.S.

Largely because of the bogus jury instructions, Siegelman and Scrushy were convicted of a “crime” that does not even exist under the law. Also, the bribery charges were brought almost one full year after the five-year statute of limitations had expired. So even if Siegelman and Scrushy had committed gross acts of bribery–which they did not–the case, by law, could not even lawfully go to a jury. When you add apparent misconduct involving the judge, prosecutors, and jurors . . . well, you can see why many of us call the Siegelman case the most notorious political prosecution in American history.

Obama deserves blame for several reasons: (1) His solicitor general (current SCOTUS Justice Elena Kagan) argued against Supreme Court review in the Siegelman case; (2) Obama’s attorney general, Eric Holder, has done little or nothing to investigate abuses under the Bush DOJ, which include dozens of cases like Siegelman’s, where Democrats were targeted on weak or nonexistent evidence; (3) The president has almost absolute power to issue pardons, and he has done nothing so far in the Siegelman case. The former governor has been in a federal prison at Oakdale, LA, since last Sept. 11.

JB: The president isn’t expected to be on top of every case, is he? Has anyone taken up Siegelman’s cause?

RS: I don’t think anyone expects the president personally to be involved in such matters. But his justice department certainly has the duty to ensure that our courts operate under the law, that we don’t deprive innocent people of liberty–and that was the No. 1 concern U.S. Rep. Steve Cohen (D-TN) voiced in his questioning Wednesday of Eric Holder.

Many people have taken up the Siegelman cause, in one form or another. More than 100 former state attorneys general have stated that the case was a grave injustice. Dana Siegelman, the former governor’s daughter, is the driving force behind a Web site (free-don.org) that is pressing for a presidential pardon.

Richard Scrushy has completed a six-year term in prison, and he has spoken out in two recent interviews. Also, Scrushy has a pending appeal before the U.S. Eleventh Circuit, and Siegelman has a motion for a new trial that has been sitting before trial judge Mark Fuller for months, with no action. Finally, a number of journalists–Scott Horton, Andrew Kreig, you and I, plus several others–have kept the issue before the public. A lot is going on, across many fronts.

JB: This has all been going on for a very long time, Roger. The case has set a terrible precedent from any point of view. How does it put us all at risk? And any sign that progress is being made?

RS: It puts any politician who accepts campaign contributions at risk, especially if he later appoints a donor to any position–board member, ambassador, etc. The Siegelman ruling allows a jury to “infer” that an illegal quid pro quo was involved, and that should be frightening for all Americans. It also puts any campaign donor at risk; in fact, Richard Scrushy spent almost six years in federal prison because he contributed to a Siegelman campaign an accepted appointment to a board he already had served on for years–and Scrushy has stated publicly that he didn’t even want to serve on the board anymore; he was tired of attending the meetings.

In a broader sense, it puts all Americans at risk if they ever go into court for any reason–a divorce, a car accident, an estate matter, you name it. The big lesson from the Siegelman case is this: Our courts cannot be trusted to apply the law correctly and equally to all citizens. Our 14th Amendment rights to due process (a disinterested tribunal, etc.) and equal protection mean nothing.

And most chilling of all, if a trial court screws up your case, you cannot have any faith that appellate courts will get it right. Because of the 11th Circuit’s ruling on Siegelman, we now have bad law here in our circuit (Florida, Georgia, Alabama) that clearly conflicts with U.S. Supreme Court precedent in McCormick. One of the fundamental roles of our appellate system is to ensure that kind of thing does not happen. That’s why SCOTUS was profoundly wrong to deny review on the Siegelman case. It caused bad case law to remain on the books.

I don’t believe progress will be made until the Obama DOJ grows a spine and initiates an investigation of the Siegelman case and other Bush-era political prosecutions. Pardoning Don Siegelman would be a positive step. But we cannot allow such manipulation of our justice apparatus to remain unaddressed. If Obama leaves office with these issues still hanging, he has been a failure, in my view.

Also, this could wind up at Obama’s doorstep someday. He has appointed any number of large donors to ambassadorships and such. Once he’s out of office, a Republican DOJ could claim that appointments involved “inferred quid pro quos,” and Obama and those donors could be at huge risk. The president ignores this issue at his own peril.

More importantly, it imperils the Democrat Party. Are candidates and donors going to get involved if they know they might wind up in federal prison for engaging in standard political behavior? The Siegelman case already has had a chilling effect here in Alabama. Many statewide offices no longer attract a serious Democratic candidate. If political prosecutions are allowed to stand, look for that trend to spread to other states.

JB: Why aren’t the Super PACs concerned about this? With Citizens United, they can now make unlimited infusions of cash into our political system. Since most of the Super PACs are fueled by Republican millionaires and billionaires, shouldn’t Republicans be concerned here? Couldn’t their big donors [aka Super PAC sponsors] also get swept up in this? t’s a non-partisan, all-purpose concern, isn’t it?

RS: Yes, it should be a bipartisan concern. And many of the 100-plus former state attorneys general who have spoken up against the Siegelman prosecution are Republicans. If we wind up with a corrupt Democratic appointee as attorney general–or a Democratic equivalent of Karl Rove (God forbid!) as a White House advisor–then, yes, the shoe could wind up on the other foot. That modern Republicans tend not to speak up about Rove’s abuses indicates the GOP has lost any moral center it might have once had–and that is not good for our country.

I’m not an expert on how Super PACs work, so I’m not sure if this is a big concern for them or not. The federal-funds bribery law, which was applied in the Siegelman case, tends to be applied mainly to cases where an individual donor makes a campaign gift and then receives an apparent benefit of some sort, such as appointment to a board or government position. The PACs might help provide cover for the sources of these big donations. It’s also possible that many big donors don’t want a political appointment, they just want favorable treatment for their particular industry or corporation. The indirect nature of such benefits might take them beyond the scope of federal-funds bribery law.

JB: A sobering picture to be sure. Anything to add before we wrap this up, Roger?

RS: I would encourage your readers to stay on top of any new developments. Siegelman has appealed denial of his Motion for a New Trial, and that has been hanging for almost a year. Scrushy has an appeal before the Eleventh Circuit, seeking discovery that he and his lawyers believe would prove corruption in how the case was handled. Plus U.S. Rep. Steve Cohen (D-TN) grilled Eric Holder on Wednesday at the House Judiciary Committee hearing about the Siegelman case–and Holder mostly danced around the issues. It is a sobering picture at the moment, but there are slivers of possible sunlight on the horizon.

JB:Speaking of Scrushy, since being released from prison, didn’t he mention something about how he was asked to perjure himself about Siegelman in order to make the government’s case for them?

RS: Yes, Scrushy said that in an interview with San Francisco radio host Peter B. Collins and with HuffPost Live –and I reported on both interviews at my blog, Legal Schnauzer. Scrushy said that government investigators told him they would let him out of the case in exchange for certain testimony against Siegelman. The testimony they wanted, Scrushy said, was not true, and he refused to make false statements under oath. Because of his refusal, feds kept him in the case, and a bogus conviction caused Scrushy to spend almost six years in federal prison. That is the hideous reality of our so-called “justice” system.

JB: A little too Orwellian for my taste, Roger. Thanks so much for talking with me again. We’ll look forward to updates on this as they become available.